' Applicant Sajjan son of Allah Rakhio was arrested by the S. H.
0. Mirpur Sakro Police Station on 19th March, 1983, at 7-30 a. m. He was kept in custody for the night intervening 19th and 20th of March, 1983 and produced before the Sub-Divisional Magistrate, Mirpur Sakro, at Gharo for an action under section 110, Cr. P. C. The proceedings were registered as case No, 68 of 1983 and a notice under section 112, Cr, P. C. Was issued to the applicant by the learned Magistrate. On the same day another notice under section 117 (3), Cr. P. C. Was issued and as the copy of this notice (Annexure 'C') shows, this notice was appended by a note signed by the Magistrate and to the following effect :- "The respondent who is present in custody in this Court, failed to furnish the required surety. He is, therefore, remanded to custody till he furnished the said surety."
' Copy of the case diary filed with the application as annexure 'D', of 20th March, 1983 reads as under :- "Report under section 110/55, Cr. P. C. Produced by Mirpur Sakro Police. Respondent Sajjan produced in custody by Police. P. W. A. S. I. Muhammad Musa present and bound down. None else present.
Copies of statements under section 161, Cr. P. C. And mashirnama of arrest delivered to, the respondent on receipt. Order under section 112, Cr. P. C. Passed as Exh. I. Report of A. S. I. Muhammad Musa requesting for order under section 117/(3), Cr. P. C. His statement recorded. However, order under section 117 (3), Cr. P. C. Passed Exh. 22 put off to 4th April, 1983.
' Respondent remanded to custody. Issue summons to -remaining P. Ws."
' The applicant remained in custody and on 10th April, 1983 this revision application under section 439 read with section 561-A, Cr. P. C. Was moved in the High Court of Sind, Circuit Hyderabad. A bail application was also moved on behalf of the applicant on 7th April, 1983 and on 17th April, 1983 bail was granted on the applicant's furnishing surety in the sum of Rs, 10,000. The above is the background of the case.
2. The contention raised before me by the learned counsel for the applicant is that the report furnished to the Magistrate being Kar-Rawai No, 1 of 1983 on which action under section 110, Cr. P. C.
Has been taken in an abuse of the process of law and Court. That these bunch of sections which have been incorporated in the Criminal Procedure Code and to be sparingly used in extreme cases when on account of a most pungent and desperate conduct a person who has become a nuisance and problem for the locality or the society leaves no other option for the law enforcing( agency have been most recklessly applied as a weapon of oppression and harassment by the Police concerned in this case. The whole proceedings starting from the arrest of this applicant at 7- 30 a. m. On 19th March, 1983 and followed by the series of orders passed by the learned Magistrate on 20th March, 1983 condemning the applicant to prison cell seem to be in exercise of power in a manner not to be approved at all. The report of the Police officer is nothing more than a stereotype reproduction of the contents of the provisions of law and the chain of notice signed by the Magistrate one after another on the same day at the same time and remanding the applicant to custody, clearly show that anything but a dignified judicious approach was brought to bear in determining the behaviour and conduct and reputation of the applicant justifying the action which the learned Magistrate had chosen to take in remanding him to custody. Not a word has been said about his arrest. It is hard to discover from the proceedings how his arrest by the police was justified. Far more important is what was the basis and evidence before the learned Magistrate to bless his detention by passing an order of remand of the applicant to custody.
3. Afrer narrating the allegations which to my mind is nothing but copying out the provisions of sections 110, Cr. P. C. The following paragraph is revealing and must be produced to appreciate what was the approach of the Police officer in this case. Instead of playing for security for good behaviour as contemplated by section 110, Cr. P. C. This police officer approaches the Court with the following prayer :- "He avenges the persons who make complainants against him. He commits their thefts. His remaining at large is hazardous for the public."
4. The basic approach as can be gathered froth the above prayer is that the officer concerned does not want that the so-called habitual offender should be at large. But this action would not be the action warranted by these bunch of sections. In his anxiety to some how hammer out a case warranting an action under section 110, Cr. P. C. He has given instance of 5 criminal cases in which this applicant was involved but as the report itself discloses in 4 of them he was acquitted and in one (being Crime No, 36/1975) he was convicted. Even in this 8 years old conviction it is not clearly mentioned under which of the three offences mentioned in the report the conviction was recorded and what were terms and other details of conviction. The last case in which he was challaned was case No, 31/79 but in this also he was acquitted. This clearly shows that for the last 4 years there has not even been a case in which he may have been involved. The proceedings under section 110, Cr. P. C. Are to be initiated not for individual and solitary offences which are punishable under the relevant provisions of law.
' They are meant for those persons who by habit have a notoriety of being robbers, house-breakers.
Thieves or forgers, who receive stolen property knowing the same to have been stolen by habit and who habitually protect or harbour the thieves or aid in the concealment or disposal of stolen property. Who habitually commit, attempt to commit or abet the commission of offence of kidnapping, abduction. Extortion, cheating or mischief or any offence punishable under Chapter XII of the Pakistan Penal Code, or under section 489-A, section 489-B. Section 489-C or section 489-D of that code or habitually commit or attempt to commit or )abet the commission of offence involving the breach of the peace, or who are so desperate or dangerous as to render their being at large without security hazardous to the community. It is of fundamental importance that a Judicial officer who proposes to exercise this power against a citizen must be satisfied that a case is likely to be made out against the person before he takes an action on the report submitted before him because that is the basic requirement of exercise of any judicial power. Powers conferred by sections 112, 114, 115. 116, 117, Cr. P. C. Are not meant to be automatically exercised and notices visualised in these sections are not supposed to be rubber stamping of the report of a Police officer asking for an action. Time and again these sections have been interpreted by our own Court and I cannot do better than to make reference to a very exhaustive and illuminating judgment given by Mr. Justice Naimuddin and reported in 1982 P Cr. L J 750. In this judgment, the learned Judge has done an exhaustive survey of these sections and has quoted as many as 12 judgments including judgments from Indian Jurisdiction. The anxiety shown by his Lordship in writing this very exhaustive judgment is reflected in the following passage. After quoting a judgment of Mr. Justice Zafar Hussain Mirza, his Lordship observed :- "It would have sufficed to rely on that judgment and allow this application, but I think, I should restate the law on the points raised so that all concerned have clear and complete view of the law before them."
' It is a pity that this judgment was passed some times in July, 1982 and was published in July, 1982 but its beneficial effects do not seem to have yet permeated the thinking of the persons concerned and I have noticed that stream of applications on the same pattern are pouring in and are being disposed of with the same observations and analysis of these sections as have been repeatedly mentioned in all these chain of cases disposed of by the different Judges of the High Court and reported during the last 15 or 20 years.
5. As stated above, there is only one crime in which the applicant is alleged to have been convicted in 1975. I may profitably quote some instructive passage from the judgment mentioned above. At page 753 of P Cr. L J mentioned above, the learned Judge observed ;- "The phrase 'habitual offender' came up for consideration before the Supreme Court of India in Dhanji Ram Sharma v. Superintendent of Police AIR 1966 SC 1766 and it was ruled that a habitual offender is one who is criminal by habit or by disposition framed by repetition of crime. It therefore, follows that a person can be said to be by habit or habitually thief or robber when he repeatedly commits thefts or robberies. In my opinion, therefore, one or two instances would not be sufficient to prove that a person does such acts by habit as come within the purview of section 110, Cr. P. C.
There should be numerous instances to establish the habit. Then there should be evidence that the person proceeded against is by habit thief, robber etc. Evidence of general reputation can be given but the same should be by those among whom or in whose neighbourhood the person lives.
Evidence of police officers alone unless they had some special means to know the reputation in the course of their duties, would not be sufficient. Vague and general allegations as to the nature of the acts of offences contemplated by the provisions of section 110, Cr. P. C. Would also not be sufficient."
6. The case before mc does not mention any single witness from the Mohalla, the neighbourhood or from the public at large. All the four witnesses are the police personnel. Complainant Ghulam Hussain is S. H.
0. Of P. S. Mirpur Sakro, Muhammad Musa is an A. S. I. Of P. S. Mirpur Sakro, Muhammad Afsar is H. C.
P. S. Mirpur Sakro and Hamir Khan is a Lance Naik No, 742 at the same police station. As observed by his Lordship in the judgment, this list of police officers does not seem to be a very impressive list, on whose testimony it could be established that the applicant can be condemned as a habitual robber, house-breakers, thief etc. Within the meaning and in terms of section 110, Cr. P. C. Such were the considerations which have persuaded the Judges who have quashed the proceedings in similar matters and whose views are expressed in the 12 judgments quoted and relied upon by Mr. Justice Naimuddin in the judgment mentioned above. This case also on all fours is governed by the considerations expressed in all these judgments from time to time. In the judgment passed by Zafar Hussain Mirza, J, in Revision Application No, 15 of 1981 following Mazan alias Mazno, Miral, Uris and Maroo the learned Judge had examined the impact of these proceedings and I quote a passage :- "It is pointed out that the S. H.
0. Himself is the complainant and two witnesses have been cited who are both A. S. I's of Police and no private person of the locality has been cited as a witness. It is vehemently contended on behalf of the petitioners that the complaint did not disclose sufficient material for the learned Magistrate to exercise his jurisdiction and take cognizance of the proceedings. It is further submitted that none of the petitioners have previous conviction. Indeed they have never even been challaned in any criminal case. The submission is that the vague and general allegations levelled against the petitioners in the complaint do not come within the purview of section 110, Cr. P. C. In this connection reference has been made first to Mazan v. State PLD 1975 Kar. 1035, in which proceedings taken under section 110, Cr. P. C. Were quashed by the High Court on the ground that it will be highly unsatisfactory to base a final order on mere evidence of general repute deposed to by the police officers which will result in unnecessary harassment of the applicant. Learned Judge observed that habit must be proved by aggregate instances so that it is necessary that there should be evidence by large number of persons in respect of definite instances of criminal case in which the person complained against was involved. Further, it was elucidated that evidence of general repute in proceedings under section 110, Cr. P. C. Must be direct coming from the respectable person of the locality and not mere opinion based upon rumour. Reference was then made to Uris v. State PLD 1981 Kar. 50 in which the aforesaid view was followed. In Miral v. State 1978 P Cr. L 3161 it was held that mere vague and general allegations against the person that he is a habitual robber, house-breaker, thief, receiver of stolen property etc. Would not be sufficient for initiating proceedings unless the allegations are backed by particular instances or particulars of criminal habits. Similar view was taken in Maroo v. State 1980 P Cr. L J 363. The case of the present petitioners clearly, therefore, falls within the mischief of the dicta laid down in the aforesaid reported cases."
7. In the above passage the scope of exercise of powers under sections 110 to 117, Cr. P. C. Has been examined from all angles.
8. The above discussion would show that the case of the applicant before me is covered by the judicial opinion quoted above and which unfortunately has been completely ignored by the learned Magistrate who seems to have acted in a mechanical rather than in judicial manner in issuing these series of notices. I respectfully agree with the view expressed above and as the case before me falls within the purview of the opinion expressed in those cases, I would quash the proceedings pending against the applicant, discharge the notices issued against him and cancel the bail bond furnished by the applicant.